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Storm brewing in judiciary

by Lesotho Times
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MASERU — A serious conflict is brewing between judges and lawyers over a commission of inquiry set up by the Law Society of Lesotho to investigate the crisis in the county’s judiciary sector.

The Law Society set up the commission last year to investigate “any possible corrupt, unprofessional, unethical and unjudicial practices that may have crept into the judicial system”.

The commission was also supposed to probe the independence of the whole judiciary system and the composition of the Judicial Service Commission whose role is to appoint judges to the bench.

It will also investigate “the extent, if any, to which the judiciary has been subjected to the influence and manipulation of the executive and legislative organs of the state”.

The legislative refers to parliament while the executive means the presidency and cabinet.

The Law Society said the commission was necessary because there has been a serious erosion of public confidence in the justice delivery system of Lesotho.

Hearings and judgments have been delayed and some judges have made some questionable decisions.

To gather the evidence the commission is supposed to conduct public hearings and gather evidence from lawyers, judges and other stakeholder in the judiciary sector. It is these hearings that have sparked off a fight between the judges and lawyers. 

Lawyers accuse judges on the bench of trying to stonewall and sabotage the commission’s investigations. The judges have indicated that they will not allow the hearings and investigations to interfere with the progress of the cases in the courts because the commission was a private initiative.

On April 15 the Chief Justice Mahapela Lehohla instructed the Registrar of the High Court & Court of Appeal to write to the Law Society indicating that the bench will not allow the commission to interfere with the work of lawyers and judges at the courts.

He said the establishment of the commission had not been published in the government gazette as required by the law.

“The Public of Inquiries Act No.1 of 1994 governs the establishment of commission of inquiries and in terms of section 3(1) this is done by notice published in a gazette if the Prime Minister considers that to be in the public interest,” said the letter in possession of the Lesotho Times. 

The letter said the Chief Justice and High Court judges were not aware of the gazette that announced the establishment of this commission so they considered it a private matter.

“In the circumstances they consider the proposed inquiry as a purely private exercise by the Law Society which cannot be allowed to interfere with the business of the courts,” said the letter.

“Legal practitioners who wish to participate in that exercise will be required to make alternative arrangements for the representation of their clients.”

This has angered the lawyers who say the letter indicates that the judges are either hostile to the investigations or they are simply reluctant to be put under scrutiny.

They read the letter to mean that the bench does not take the commission’s investigations into the crisis in the judiciary sector seriously and cannot allow the lawyers to put aside some cases to give evidence to the commission.

Law Society president Zwelakhe Mda, who was the first witness at the commission’s first hearing on Monday, told the Lesotho Times in an interview that he was worried but not surprised by the bench’s attitude to the commission.

“We have created a system of complacency in the judiciary system in the courts,” Mda said.

“I am not surprised that some people might feel threatened by this commission because it is going against the normal practice that they have known. People are not happy about a scrutiny on their work.”

“We are making history here and I don’t understand why some people want to stand on the way. How will they be remembered? Do they want to be remembered as the people who worked against such an historic and noble cause?” 

Mda said the commission was not targeting a specific area but the whole judiciary system including the lawyers themselves. 

“We must accept that we have a problem in the sector and we need to find solutions.” 

“My point is that even without the lawyers attending the commission’s hearings we have always had a delay in the court. We have had court business being postponed because judges are either attending workshops or attending to personal business,” said Mda.

“This is history in the making. People should not be afraid to name names and if there are people who have been conducting their business well we will mention them as well.”

Mda said one of his concerns was with the composition of the Judicial Services Commission which he said was heavily tipped in favour of the state.

“Perception is very important in the legal sector. We need to change the negative perception that has hit the sector. To do that we need to look at institutions like the Judicial Service Commission.”

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